Citation Nr: 0818314
Decision Date: 06/04/08 Archive Date: 06/12/08
DOCKET NO. 04-42 245 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hypertension, to
include as secondary to the service-connected disability of
diabetes associated with herbicide exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1965 to February
1967.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 2004 rating decision of the
Waco, Texas Regional Office (RO) of the Department of
Veterans Affairs (VA) which, in part, denied the veteran's
claim for entitlement to service connection for hypertension.
In August 2007, the veteran attended a videoconference
hearing before the undersigned. The transcript of the
hearing is associated with the claims file.
FINDING OF FACT
Hypertension was first demonstrated many years after service,
is not the result of a disease or injury in service, and is
unrelated to a service-connected disease or injury.
CONCLUSION OF LAW
The veteran's hypertension was neither incurred in nor
aggravated by military service, nor may it be presumed to
have been incurred therein, nor is it secondary to any
service-connected disability. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1137 (West 2002 & Supp 2007); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.310(a) (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. § 5103(a)
(West 2002); C.F.R. § 3.159(b)(1) (2007). VCAA notice should
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II).
In a letter issued in December 2003 the RO notified the
veteran of the evidence needed to substantiate his claim for
service connection. The letter satisfied the second and
third elements of the duty to notify by informing the veteran
that VA would try to obtain medical records, employment
records, or records held by other Federal agencies, but that
he was nevertheless responsible for providing any necessary
releases and enough information about the records to enable
VA to request them from the person or agency that had them.
With respect to the fourth element, the December 2003 VCAA
letter contained a notation that the veteran should make sure
that VA received all records that were not in the possession
of a Federal department or agency. This statement served to
advise the veteran to submit any evidence in his possession
pertinent to the claim on appeal.
The United States Court of Appeals for Veterans Claims
(Court) has also held that that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
The veteran has substantiated his status as a veteran and the
second and third elements of Dingess notice are satisfied by
the December 2003 letter. However, the veteran did not
receive notice about the evidence needed to establish a
rating or notice regarding an effective date until a March
2006 letter. VCAA notice should be provided prior to the
initial adjudication of the claim. Pelegrini II. The timing
deficiency in the March 2006 letter was cured by
readjudication in a supplemental statement of the case dated
in November 2006. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006).
Thus, all required notice was given.
The duty to assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The RO has obtained all the evidence
reported by the veteran or suggested by the record.
The veteran has not reported any missing VA or private
medical records that need to be obtained. The Board is not
aware of any such records, nor is the Board aware of any
additional evidence that could assist the veteran in
substantiating his claim.
Additionally, the veteran underwent VA examinations for his
hypertension in September 2004 and May 2006.
Therefore, the facts relevant to the veteran's claim has been
properly developed, and there is no further action to be
undertaken to comply with the provisions of the VCAA and the
implementing regulations. See Wensch v. Principi, 15 Vet App
362 (2001); see also 38 U.S.C.A. §5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim").
Legal Criteria
Service connection will be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Establishing service connection generally requires (1)
medical evidence of a current disability; (2) medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.
App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of
establishing the second and third Shedden/Caluza element is
through a demonstration of continuity of symptomatology.
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v.
Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v.
West, 12 Vet. App. 296, 302 (1999). Continuity of
symptomatology may be established if a claimant can
demonstrate (1) that a condition was "noted" during service;
(2) evidence of post-service continuity of the same
symptomatology; and (3) medical or, in certain circumstances,
lay evidence of a nexus between the present disability and
the post-service symptomatology. Savage, 10 Vet. App. at
495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-
service incurrence sufficient in some circumstances for
purposes of establishing service connection); 38 C.F.R. §
3.303(b).
Lay persons are not competent to opine as to medical etiology
or render medical opinions. Barr v. Nicholson; see Grover v.
West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Lay testimony is competent,
however, to establish the presence of observable
symptomatology and "may provide sufficient support for a
claim of service connection." Layno v. Brown, 6 Vet. App.
465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398,
405 (1995) (lay person competent to testify to pain and
visible flatness of his feet); Espiritu, 2 Vet. App. at 494-
95 (lay person may provide eyewitness account of medical
symptoms).
"Symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology." Savage, 10 Vet. App. at 496
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once
evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted").
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Additionally, for veteran's who have served 90 days or more
of active service during a war period or after December 31,
1946, certain chronic disabilities, such as hypertension, are
presumed to have been incurred in service if such manifested
to a compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a),
3.309(a).
With chronic diseases shown as such in service, or within the
presumptive period after service, so as to permit a finding
of service connection, subsequent manifestation of the same
chronic disease at any later date, however remote, are
service connected unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2007).
Service connection is also provided for a disability, which
is proximately due to, or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310. The Court has held
that service connection can be granted under 38 C.F.R.
§ 3.310, for a disability that is aggravated by a service-
connected disability and that compensation can be paid for
any additional impairment resulting from the service-
connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995).
VA has amended 38 C.F.R. § 3.310 to explicitly incorporate
the holding in Allen, with the proviso that aggravation will
not be conceded unless a baseline for the nonservice-
connected condition can be established prior to the
aggravation. 38 C.F.R. § 3.310(b).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Factual Background
Service connection has been in effect for diabetes associated
with herbicide exposure since August 10, 2001.
The Board has reviewed the veteran's service medical records
and finds no evidence of complaints of, or treatment for,
hypertension. All in-service blood pressure readings showed
systolic pressure well below 160mm and diastolic blood
pressure well below 90mm. See 38 C.F.R. § 4.104, Diagnostic
Code 7101, note 1 (indicating that the term "hypertension"
means that diastolic blood pressure is predominantly 90mm or
greater, and isolated systolic hypertension means that the
systolic blood pressure is predominantly 160mm or greater
with a diastolic blood pressure of less than 90mm).
In August 1996, the veteran presented for treatment from
Nazemi, MD. The diagnosis was hyperlipidemia.
In April 2000, the veteran presented to M. Julian, MD. The
diagnosis was borderline diabetes mellitus.
In June 2003 the veteran presented to the El Paso, Texas VA
Medical Center (VAMC). The diagnosis was diabetes mellitus
and tinea.
In September 2004 the veteran underwent a VA examination.
The veteran reported that he was diagnosed with hypertension
about 3 years ago when he was diagnosed with diabetes. The
diagnosis was essential hypertension with no evidence of
hypertensive cardiovascular disease found. The examiner
stated that the veteran's essential hypertension was not
secondary to his diabetes because the veteran did not have
any signs of diabetic neuropathy, with no evidence of protein
in his urine and no evidence of microalbumin in his urine.
The examiner also noted that the veteran was diagnosed with
hypertension at basically the same time as he was diagnosed
with diabetes. The examiner stated that it took around 7 to
10 years to cause diabetic nephropathy with secondary
hypertension meaning that the veteran was going to develop
hypertension regardless of his diabetes.
In a July 2005 letter, Dr. Julian stated that she had treated
the veteran since April 2000. She stated that the veteran's
previous physician had been treating the veteran for his
diabetes and hyperlipidemia since 1996. Dr. Julian concluded
that the veteran had hypertension that was related to his
diabetes.
In May 2006 the veteran again underwent a VA examination.
The examiner noted that the veteran's claims file and medical
record was reviewed. The veteran reported that he was
initially diagnosed with hypertension in 2001. He also
reported that he was initially noted as having blood pressure
by a clinical physician in 1993. The examiner noted that
there was conflicting information about when the diabetes was
diagnosed but the documented diagnosis of diabetes mellitus
was in 2001. Currently there was no evidence of diabetic
complications such as retinopathy or nephropathy. There was
also no evidence of neuropathy. The diagnosis was
hypertension not secondary to diabetes mellitus. The
examiner stated that the veteran's hypertension was less
likely than not secondary to his diabetes mellitus as there
was currently no evidence of diabetic nephropathy that could
lead to elevated or uncontrolled blood pressure. He noted
that at the time of the diagnosis of hypertension, the renal
function tests were also normal. This was not secondary to
his military service since the hypertension was diagnosed
more than 20 years after his military service and there was
no indication that he had hypertension in the military.
At his August 2007 hearing, the veteran testified that he was
first diagnosed with hypertension in the late 1990's and that
his private doctor attributed his hypertension to his
diabetes.
Analysis
In this case, a grant of service connection based on direct
causation for hypertension is not warranted. The veteran's
service medical records are entirely negative for any
manifestations of hypertension, and the veteran has not
reported hypertension symptoms in service. There is also no
evidence of a direct relationship between the current
hypertension and service.
The veteran also does not contend that service connection is
warranted on the basis of the presumptions afforded chronic
diseases. Although there is current hypertension, this
disease was first shown many years after service. Because
hypertension was not identified in service or for many years
after service, the weight of the evidence is against
presumptive service connection. 38 U.S.C.A. §§ 1112, 1113;
38 C.F.R. §§ 3.303(b), 3.307, 3.309.
The veteran served in Vietnam and is presumed to have been
exposed to herbicides, it is clear, however, that
hypertension, is not listed among the conditions subject to
presumptive service connection. Thus, presumptive service
connection for this disorder due to herbicide exposure is not
warranted. McCartt v. West, 12 Vet. App. 164 (1999); 38
C.F.R. §§ 3.307, 3.309. There has been no contention or
evidence that the veteran has hypertension directly related
to herbicide exposure.
The veteran is claiming service connection on a secondary
basis. A secondary service connection claim requires medical
evidence to connect the asserted secondary condition to the
service-connected disability. Wallin v. West, 11 Vet. App.
509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); see
Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing
Reiber v. Brown, supra).
There are conflicting opinions as to whether the veteran's
hypertension was secondary to his service-connected diabetes.
In her July 2005 letter, Dr. Julian provided evidence linking
the veteran's hypertension to his service-connected diabetes.
However, the September 2004 and May 2006 VA examiners
concluded that the veteran's essential hypertension was not
secondary to his diabetes. Both examiners noted that there
was currently no evidence of diabetic nephropathy that could
lead to elevated or uncontrolled blood pressure.
The Board may favor the opinion of one competent medical
professional over that of another so long as an adequate
statement of reasons and bases is provided. See Owens v.
Brown, 7 Vet. App. 429, 433 (1995).
While Dr. Julian's July 2005 opinion suggests that there may
be a link between the veteran's current hypertension and his
service-connected diabetes, the May 2006 VA examiner had the
benefit of a review of the veteran's claims file, and
provided a more detailed opinion than the July 2005 opinion.
The May 2006 VA examiner also addressed the timing of the
veteran's symptoms and, unlike Dr. Julian, provided a
rationale for his conclusions. For these reasons the Board
finds the May 2006 VA examiner's opinion to be the most
probative.
The Board notes the veteran's testimony regarding the cause
of his hypertension being secondary to his service-connected
diabetes. However, as a lay person, he is not competent to
render an opinion on matters of medical causation. Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993), Espiritu v. Derwinski,
supra.
Because the most probative opinion is against the claim, the
Board concludes that the preponderance of the evidence is
against the grant of service connection for hypertension
secondary to his service-connected diabetes. In reaching
this determination, the Board acknowledges that VA is
statutorily required to resolve the benefit of the doubt in
favor of the veteran when there is an approximate balance of
positive and negative evidence regarding the merits of an
outstanding issue. That doctrine, however, is not applicable
in this case because the preponderance of the evidence is
against the veteran's claim. See Gilbert v. Derwinski, 1
Vet. App. 49, 53 (1990).
ORDER
Entitlement to service connection for hypertension, to
include as secondary to the service-connected disability of
diabetes associated with herbicide exposure is denied.
____________________________________________
TARA L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs